Judge upholds NSA’s phone data sweeps (UPDATED)

Posted Fri, December 27th, 2013 2:40 pm by Lyle Denniston

Friday 4:48 p.m. This post has been updated and expanded to cover the ruling more fully.

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Ruling that the government’s global telephone data-gathering system is needed to thwart potential terrorist attacks, and that it can only work if everyone’s calls are swept in, a federal judge in New York City ruled Friday that Congress legally set up the program and that it does not violate anyone’s constitutional rights. The fifty-four-page ruling by U.S. District Judge William H. Pauley III can be read here.

The decision conflicts in many key respects with a ruling earlier this month by a federal judge in Washington, D.C., who concluded that, after a full trial in court, the program almost certainly will be found to be unconstitutional. Appeals are expected in both cases, and one or more cases like these ultimately will reach the Supreme Court.

Given the fact that the issues surrounding the National Security Agency’s global “metadata” program are novel and not easily resolved, it is no surprise that judges are ruling differently. That very difference, though, is likely to enhance the prospects that the Supreme Court sooner or later will agree to resolve the dispute.

One of the most significant differences between the two new rulings was that Judge Pauley credited the NSA collection effort with notable success in helping the U.S. government track down potential terrorists before they could actually attack, while the Washington judge — U.S. District Judge Richard J. Leon — said flatly that he was not convinced that the program was producing results.

Judge Pauley even suggested that, had the current NSA global program been operating prior to September 11, 2001, the government might well have discovered the plot by homing in on one of the hijackers. The judge also gave other examples, supplied by the government, of the program’s success as a counter-terrorism weapon.

Suggesting that the al Qaeda terrorist network had used modern technology in staging the 2001 attacks, the New York judge said the U.S. government has now developed what he called “the government’s counter-punch; connecting fragmented and fleeting communications to re-construct and eliminate al-Qaeda’s terror network.”

Aside from fully embracing the government’s claims about how telephone bulk data sweeps are working against terrorist threats, Judge Pauley reached a number of other major legal conclusions:

** He ruled that the constitutionality of the vast new program is controlled by a 1979 Supreme Court ruling — Smith v. Maryland— that had declared that an individual customer of a telephone company has no right to privacy in the data that the telephone company gathers about its customers’ use of their service. In discussing that precedent (which Judge Leon had declined to follow), Judge Pauley said the threat to privacy was even greater when a single individual’s telephone records are examined by government than when tens and tens of millions’ data is gathered in bulk.

** He ruled that Congress had full authority to grant the government the power to conduct such a global by seeking secret orders from a secret federal intelligence court, and found that this entire regime had worked as Congress had intended. He thus ruled that the challengers could not show that the bulk data sweeps were illegal under federal law.

** He found that there was no violation of a constitutional right to privacy in the NSA program, and concluded that the telephone data being swept up by NSA did not belong to telephone users, but to the telephone companies.

** He ruled that, when NSA obtains such data from the telephone companies, and then probes into it to find links between callers and potential terrorists, this further use of the data was not even a search under the Fourth Amendment.

The only close parallels between what Judge Pauley decided and what Judge Leon had ruled was that both agreed that, with the disclosures by former NSA analyst Edward J. Snowden, customers who use telephones throughout the U.S. now have a right to bring challenges in court, because their telephone use almost certainly had been caught up in the NSA sweeps, and that those challenges could be based on the Constitution. Both, however, ruled that the challengers could not argue in court that the data gathering was illegal under federal law.

Although Judge Pauley conceded that the complaints of the challengers in his court — the American Civil Liberties Union and other groups — were not “trivial,” he clearly found them to be almost totally outweighed by the value to the government of the broad program of data collection.

An appeal in that case (ACLU v. Clapper) would go to the Second U.S. Circuit Court of Appeals. An appeal from Judge Leon’s earlier ruling (Klayman v. Obama) would go to the U.S. Circuit Court for the District of Columbia Circuit.

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On November 13, Justice Sonia Sotomayor, Judge Jennifer Walker Elrod of the U.S. Court of Appeals for the 5th Circuit and Judge Susan Carney of the U.S. Court of Appeals for the 2nd Circuit presided over the final round of the 2018 Ames Moot Court Competition at Harvard Law School.